De Martin v Jacobs [2008] NSWSC 1378

De Martin v Jacobs [2008] NSWSC 1378

Given the will's repeated surplusage and misuse of technical language, the out and out gift of the residue to Jule Ainslie Rigby, and the absence of any life estate or age condition giving independent work to the concept of a vested interest, the words "or before attaining a vested interest" in cl 3(b) were merely surplusage meaning no more than "if she dies before me". Because Jule survived the testatrix, the residue did not pass under the substitute gift to the plaintiffs; the defendant held the estate on trust for Jule's estate.

Jurisdiction
Australia
Judgment Date
16 December 2008
Procedural Posture
Will Construction Proceedings / Ex Tempore Principal Judgment on Summons Seeking Declaration as to the True Construction of the Will and Revocation of Probate
Outcome
Will construed in favour of the defendant's construction; probate not revoked; costs of both parties ordered to come out of the estate.
Legal Topics
['will Construction' 'vested Interest' 'residue of Estate' 'probate' 'costs Out of Estate']
['succession' 'equity'] ['will Construction' 'vested Interest' 'residue of Estate' 'probate' 'costs Out of Estate']

Case Brief

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Procedural Posture

Will Construction Proceedings / Ex Tempore Principal Judgment on Summons Seeking Declaration as to the True Construction of the Will and Revocation of Probate

Legal Issues

  1. 1 ['Whether the words "or before attaining a vested interest" in cl 3(b) of the will prevented Jule Ainslie Rigby from taking the residue because she died after the testatrix but before any transmission or full administration of the estate.' 'Whether probate granted to Joan Jacobs should be revoked.' 'Whether costs should be borne by the estate.']

Ratio Decidendi

Given the will's repeated surplusage and misuse of technical language, the out and out gift of the residue to Jule Ainslie Rigby, and the absence of any life estate or age condition giving independent work to the concept of a vested interest, the words "or before attaining a vested interest" in cl 3(b) were merely surplusage meaning no more than "if she dies before me". Because Jule survived the testatrix, the residue did not pass under the substitute gift to the plaintiffs; the defendant held the estate on trust for Jule's estate.

Court Disposition

Will construed in favour of the defendant's construction; probate not revoked; costs of both parties ordered to come out of the estate.

Orders

  • ['Declare that on the true construction of the will of the late Valda Dawn Savell and in the events which have happened, the defendant holds the estate on trust for the estate of the late Jule Ainslie Rigby.' 'Decline to order revocation of the probate.' "Order that the costs of both parties come out of the estate,...